Business and Commercial Mediation – Little Sibling Growing Up

Business and Commercial Mediation – Little Sibling Growing Up

This change is clearly visible in the recent Court of Appeal decision. The court refused to overturn a costs sanction on a party who had agreed to mediate but then “dragged its heels” in the arrangement of the mediation, which caused the other party to abandon the process.

The trial judge thought that there were real prospects that a mediation would have resulted in a settlement. Both parties had initially expressed a willingness to mediate, so there was no refusal, rejection or silence. However, the court decided that the claimants had been “more proactive” and the defendant: “was to say the least apparently relatively unenthusiastic or lacking in preparedness to be flexible”.

The claimants had made all reasonable efforts over a period of about four months to arrange a mediation but had been prevented by the defendant being slow to respond to proposals of mediators and suitable dates and, when a period was finally agreed, making a variety of excuses as to why the dates were no longer suitable.

In fact it was the claimants who stopped the attempts to schedule the mediation and decided to have the stay lifted and move forward with the proceedings.

Lord Justice Jackson, giving the lead judgment, agreed that the defendants, whilst not refusing outright to mediate, delayed for so long and raised such difficulties that the claimants lost confidence in the whole ADR process.

The court also agreed that the case was clearly suitable for mediation, highlighting that:

(a)   the dispute was a commercial one, purely about money

(b)  the settlement offers made by the parties were only a small distance apart

(c)  the costs of the litigation were vastly greater than the sum in issue

(d) bilateral negotiations between the parties had been unsuccessful.

Jackson LJ commented: “In those circumstances I would be astonished if a skilled mediator failed to bring the parties to a sensible settlement.”

“The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, this will merit a costs sanction.”

And so, for mediation and ADR, this is a giant leap forward. No longer consigned to the shadows, mediation will no longer be seen as an obstacle to be overcome on the way to trial. Mediation is now almost certain to take the place of many litigated cases.

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